PEOPLE v. KANG

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PEOPLE v. KANG

May 22, 1998
No. 200242

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v

Bay Circuit Court

MYUNG WON KANG, LC No. 90-001479 FC

Defendant,

and

MIN NAM LEE

Appellant.

Before: Markey, P.J., and Bandstra and Markman, JJ.

MARKMAN, J.

Petitioner Lee appeals by right an order denying his motion to
set aside a bond forfeiture order. We vacate and remand.

Defendant Kang was charged with armed robbery but released in
November 1990 after petitioner deposited $50,000 to satisfy the
cash or surety bond set by the district court. Defendant pleaded
no contest to unarmed robbery pursuant to a plea agreement. A May
1991 hearing was set for his motion to set aside the no-contest
plea and for sentencing. However, defendant failed to appear and
the court ordered the bond forfeited and issued a bench warrant.
Defendant subsequently was arrested in New Jersey on unrelated
charges in December 1991. The prosecutor placed a hold on
defendant for his return to Michigan, which occurred in July
1994. He was sentenced in Michigan for the unarmed robbery
conviction in August 1994. Meanwhile, in December 1992,
petitioner moved to set aside the forfeiture of the cash bond.
The trial court denied the motion. In a previous appeal, this
Court held that "a person is ‘apprehended’ within the
meaning of MCL 765.15(a); MSA 28.902(a) when that person is held
in custody in another state." In re Forfeiture of Bail
Bond, 209 Mich App 540, 543; 531 NW2d 806 (1995). It also
held that the trial court clearly erred in finding that
defendant, not petitioner, posted the funds. Id. at 550.
This Court then reversed the order denying petitioner’s motion to
set aside the forfeiture and remanded for a determination
"whether the ends of justice would be thwarted by setting
aside the forfeiture" and a determination of the costs of
apprehending defendant. Id. On remand, the trial court
noted that it was uncontested that the costs of extraditing
defendant were $1022 but concluded that "setting aside the
forfeiture would substantially thwart the interests of
justice" and therefore denied petitioner’s motion. It held
that "defendant’s fleeing the jurisdiction, subsequent
criminal offense, involuntary apprehension and subsequent return
to Michigan for sentencing controls over the sought after excusal
of the petitioner failing to produce the defendant for
sentencing."

This Court reviews a ruling on a motion to set aside a
forfeiture of a bond for an abuse of discretion. People v
Munley, 175 Mich App 399, 403; 438 NW2d 292 (1989). Questions
of statutory interpretation are questions of law that appellate
courts review de novo. People v Denio, 454 Mich 691, 698;
564 NW2d 13 (1997).

The relevant version of MCL 765.15; MSA 28.902 stated in
pertinent part[1]:

(a) If such bond or bail be forfeited, the court shall enter
an order upon its records directing, within 45 days of the order,
the disposition of such cash, check, or security, and the
treasurer or clerk, upon presentation of a certified copy of such
order, shall make disposition thereof. The court shall set aside
the forfeiture and discharge the bail or bond, within 1 year from
the time of the forfeiture judgment, in accordance with
subsection (b) of this section if the person who forfeited bond
or bail is apprehended and the ends of justice have not been
thwarted and the county has been repaid its costs for
apprehending the person.

Initially, we note that petitioner’s failure to move to set
aside the bond forfeiture until more than one year after the
forfeiture judgment is not fatal to his motion. The one-year
limitation is not jurisdictional and does not preclude
discretionary return of deposited funds. Munley, supra
at 404.

Section 15(a) states that a court "shall set aside the
forfeiture and discharge the bail or bond" within one year
of the forfeiture judgment if three criterion are met: 1) the
defendant is apprehended, 2) "the ends of justice have not
been thwarted" and 3) "the county has been repaid its
costs for apprehending the person."

This Court’s previous decision in this matter established that
the first criteria was met by defendant’s apprehension in New
Jersey within one year of the forfeiture judgment. Bail Bond,supra, at 543.

The second criteria requires an inquiry to confirm that
"the ends of justice have not been thwarted" before
returning a bond to the depositor. This criteria is articulated
in the past tense. Thus, the inquiry is not whether return of the
bond to the depositor would result in the thwarting of the ends
of justice. Rather, the inquiry is whether the circumstances
surrounding the forfeiture of the bond and subsequent
apprehension of the defendant have already thwarted the ends of
justice. On the one end of the spectrum, one could assume that
"the ends of justice have not been thwarted" whenever
the defendant is apprehended within one year of the forfeiture
judgment and brought to justice. On the other end of the
spectrum, one could assume that "the ends of justice"
have been thwarted whenever a defendant fails to appear, despite
subsequent apprehension within one year of the forfeiture
judgment. Neither of these extremes is consistent with the
language of § 15(a), which requires inquiry into the second
criterion in addition to the first criterion. Because the first
criterion is met only in situations where a defendant initially
fails to appear but is subsequently apprehended within one year
of the forfeiture judgment, the inquiry into whether "the
ends of justice have not been thwarted" must turn on
considerations beyond the fact that the defendant absconded and
beyond the fact that he was eventually brought to justice. Having
considered the matter, we believe that the full range of
circumstances must be considered in each case in making the
statutory determination. In particular, the following
considerations are among those relevant to determining whether
"the ends of justice have not been thwarted":

1. the depositor’s role, if any, in hiding the defendant,
failing to assist in the apprehension of the defendant, or
affirmatively assisting in the apprehension of the defendant;

2. the length of time elapsing between the defendant’s failure
to appear and his ultimate apprehension;

3. the extent to which evidence has been lost (e.g., death or
unavailability of witnesses, fading of witnesses’ memories) or
whether the prosecution’s case has otherwise been affected by the
delay;

4. the extent to which the defendant has committed additional
crimes before apprehension, and the seriousness of such crimes; [2]

5. the extent to which there has been a psychological or
emotional impact upon the initial victims as a result of the
defendant being at large;

6. the extent to which the defendant’s apprehension was
involuntary; and

7. the extent to which extradition or other legal procedures
have been required, thereby causing additional delays in carrying
out justice.

While individual cases may present additional considerations
relevant to whether "the ends of justice have not been
thwarted," this non-exhaustive list provides a starting
point for the inquiry under MCL 765.15; MSA 28.902. Utilizing
this list of factors to determine if "the ends of justice
have not been thwarted" avoids placing undue emphasis on
either the defendant’s failure to appear for a scheduled hearing
or the defendant’s subsequent apprehension. Focus on either of
these facts per se is inappropriate because both by
definition will be present in every case that meets the first
criterion under §15(a).

Here, the trial court’s conclusion appears to turn principally
on its assessment that the depositor had a duty to produce
defendant. While a depositor obviously risks losing the funds
deposited if the defendant fails to appear, a depositor does not,
by virtue alone of providing funds for a bond, undertake an
affirmative duty to produce the defendant. Rather, as stated
above, the depositor’s involvement, if any, in either hiding or
apprehending the defendant is simply a relevant consideration in
determining whether "the ends of justice have not been
thwarted." For these reasons, we vacate the trial court’s
assessment of this second criterion and remand for
reconsideration in accordance with this opinion.[3]

The third criterion under § 15(a) is whether "the county
has been repaid its costs for apprehending the person."
Here, the parties agreed that the extradition costs were $1022. A
letter from the prosecuting attorney indicates that this total
includes $511 to pick defendant up and $511 to return him.
However, this amount does not appear to include the county’s
indirect costs in locating defendant. The county’s costs to
locate the defendant (e.g., man-hours of investigative time,
professional and support personnel costs, telephone calls) are
all part of the costs of apprehension. We therefore hold that the
costs of "apprehending the person" under § 15 include
a jurisdiction’s costs in locating the defendant, as well as any
extradition costs.

For these reasons, we vacate the order denying petitioner’s
motion to set aside the forfeiture and remand for reconsideration
in accordance with this opinion. Because of the drawn-out history
of this case, we retain jurisdiction and order the trial court to
undertake such reconsideration within 42 days of the issuance of
this opinion.

/s/ Stephen J. Markman
/s/ Jane E. Markey
/s/ Richard A. Bandstra

FOOTNOTES:

[1]The 1993 amendments to this
statute do not involve significant changes to the portions of the
statute relevant here. See Forfeiture of Bail Bond, supra
at 543, n 2.

[2]We note that MCR 6.106’s focus
upon ensuring both the defendant’s appearance and public safety
may also provide some guidance in determining what circumstances
are relevant to the "ends of justice."

[3]
Consistent with the language of §15(a), the trial court should
articulate its decision in terms of whether the ends of justice
"have been" thwarted, not in terms of whether returning
the funds to the depositor "would" thwart the ends of
justice.